Fisher v. City of Pittsburg California et al

Filing 112

ORDER DENYING PLAINTIFF'S REQUEST TO RESCHEDULE CASE MANAGEMENT CONFERENCE. Signed by Judge CLAUDIA WILKEN on 3/10/09. (scc, COURT STAFF) (Filed on 3/10/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff filed the present civil rights complaint while he was in custody at the West County Detention Facility in Richmond, California. On August 17, 2008, Plaintiff sent a letter to the Court, which indicated that he had been transferred to Avenal State Prison. In an Order dated September 24, 2008, the Court granted in part and denied in part Defendants' motion for summary judgment. The Court also referred this case to Magistrate Judge Nandor Vadas for a settlement conference. Also on September 24, 2008, the Clerk v. CITY OF PITTSBURG, et al., Defendants. / IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA RICHARD F. FISHER, Plaintiff, No. C 05-2774 CW (PR) ORDER DENYING PLAINTIFF'S REQUEST TO RESCHEDULE CASE MANAGEMENT CONFERENCE

of the Court issued a Notice Setting Pretrial Conference and Trial. On November 25, 2008, the copies of these documents sent to Plaintiff at Avenal were returned as undeliverable. Apparently, Plaintiff had been released on parole. Later,

Plaintiff called the Clerk to inform the Court that he had been paroled.

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In an Order dated December 18, 2008, the Court set this case for a case management conference on January 13, 2009 at 2:00 pm. The Court noted that it "has been informed that the Plaintiff has been paroled, but Plaintiff has not notified the Court of a new address." (Dec. 18, 2008 Order at 1.) The Order warned that the

failure to appear at the case management conference would result in dismissal for failure to prosecute. (Id. at 2.)

In a letter dated December 22, 2008, Plaintiff filed a notice of his address: 820 23rd Street in Richmond, California. On December 29, 2008, the Clerk sent Plaintiff copies of the documents that had been returned as undeliverable and a copy of the Court's December 18, 2008 Order Setting Case Management Conference. On January 7, 2009, Magistrate Judge Vadas issued an Order scheduling a settlement conference on January 22, 2009. That Order It

set out the date, time and place of the settlement conference. was sent to the Richmond address Plaintiff gave the Court on December 22, 2008. Address at 1.) (Pl.'s Dec. 22, 2008 Notice of Change of

It was not returned as undeliverable.

On January 13, 2009, Plaintiff did not appear at the Case Management Conference. That day, Plaintiff's daughter called the

Clerk to inform the Court that Plaintiff was ill and unable to attend the hearing. On January 14, 2009, the Court issued an Order Re Failure to Appear, directing Plaintiff to appear at the January 22, 2009 settlement conference. address. That Order was mailed to his Richmond

It was returned as undeliverable on February 4, 2009.

On January 22, 2009, Plaintiff did not appear at the 2

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settlement conference before Magistrate Judge Vadas. On January 26, 2009, the Court issued an Order dismissing this case for failure to prosecute because Plaintiff failed to appear at the case management conference on January 13, 2009 and at the settlement conference before Magistrate Judge Vadas on January 22, 2009. That Order was mailed to Plaintiff's Richmond address. It

was returned as undeliverable on February 6, 2009. Also on January 26, 2009, the Court received another notice of a change of address from Plaintiff informing the Court that his new address was 279 MacArthur Avenue in Pittsburg, California. January 26, 2009 Notice of Change of Address at 1.) Before the Court is Plaintiff's request to reschedule the case management conference. (Pl.'s Jan. 23, 2009 Letter at 1.) (Pl.'s

Plaintiff claims that he was unable to appear at the case management conference because he was ill. (Id.) Defendants object

to Plaintiff's request stating that they "have already notified all witnesses that the case has been dismissed." (Defs.' Obj. at 2.)

Defendants further claim that Plaintiff did not notify them that he was ill and unable to attend the case management conference. The Court DENIES Plaintiff's request. Plaintiff failed to appear at the case management conference despite being warned that his failure to appear at that hearing would result in his case being dismissed. While Plaintiff claims

that an illness prevented him from being able to attend the case management conference, he did not attach any proof of his illness to the January 23, 2009 letter. Plaintiff also concedes that he

did not notify Defendants that he was unable to attend the hearing. 3

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Plaintiff's unsupported claim of illness does not excuse his failure to appear on January 13, 2009 or to notify Defendants that he would not appear. Further, Plaintiff's January 23, 2009 letter

fails to include any reason explaining why he failed to attend the settlement conference. Plaintiff was aware of the scheduled

settlement conference because Judge Vadas's January 7, 2009 Order for Settlement Conference was mailed to the Richmond address Plaintiff had provided and was not returned as undeliverable. In

its Order dated December 18, 2008, Plaintiff was warned that the failure to appear at the case management conference would result in dismissal for failure to prosecute; therefore, dismissal was appropriate under Rule 41(b) of the Federal Rules of Civil Procedure. See Link v. Wabash R. R., 370 U.S. 626, 633 (1962)

(district court may, on its own motion, dismiss an action for failure to prosecute or to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b)); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). Accordingly, the Court DENIES Plaintiff's request to reschedule the case management conference. and this case remains closed. IT IS SO ORDERED. Dated: 3/10/09 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE The dismissal stands,

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Richard F. Fisher 279 MacArthur Avenue Pittsburg, CA 94565 Dated: March 10, 2009 FISHER, Plaintiff, v.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV05-02774 CW CERTIFICATE OF SERVICE

CITY OF PITTSBURG CALIFORNIA ET AL et al, Defendant. /

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 10, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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